implied, in that case it need not become a matter of representation. It is likewise sufficient in the case of a representation, that it be equitably and substantially complied with ; and in furtherance of that perfect good faith which is so strongly called for in the formation of this contract, it is adjudged, that if the party, after having given instructions for effecting a policy, receives intelligence material to the risk, he must forthwith, or with due and reasonable diligence, communicate it, or countermand his instructions. If a person be an agent for procuring insurance, the assured is, of course, answerable for his information, and assumes the responsibility of its truth. So, if the master of the vessel or consignor be the agent to communicate to the assured the requisite information, and the assured adopts such information, and makes it the basis of his contract of insurance, he becomes responsible for its truth, and any concealment or misrepresentation in respect to such information by the agent, avoids the policy. When the

Shoolbred v. Nutt, Park on Ins. 300, 6th edit.

Haywood v. Rogers, 4

East's Rep. 590. Walden v. N. Y. Firemen's Ins. Company, 12 Johns. Rep. 128. De Wolf v. N. Y. Firemen's Ins. Company, 20 ibid. 214. S. C. 2 Cowen's Rep. 56.

Pawson v. Watson, Cowp. Rep. 785. De Hahn v. Hartley, 4 Term Rep. 343. Suckley v. Delafield, 2 Caines' Rep. 222.

• Emerigon, tome ii. 148. Valin's Com. tome ii. 95. Grieve v. Young, Miller on Insurance, 65. Watson v. Delafield, 2 Caines' Rep. 224. 2 Johns. Rep. 526. S. C. M.Lanahan v. Universal Ins. Company, 1 Peters' Rep. 170. But the assured, it is held, is not bound to use all accessible means of acquiring information material to the risk, up to the last instant of time, as the omission to call at the post-office on the day of the insurance, if he acts with entire good faith. Neptune Ins. Company v. Robinson, 11 Gill & Johnson, 256.

a Fitzherbert v. Mather, 1 Term, 12. Gen. Int. Ins. Company v. Ruggles, 12 Wheat. Rep. 408. S. C. 4 Mason's Rep. 74. The decision in Gladstone v. King, 1 Maule & Selw. 35, was, that if the master conceals a loss or other material fact from the owner, in the letter to him, and the owner upon the receipt of the letter, and in ignorance of the fact, effects an insurance, the

*287

insured acts with good faith, the validity of the policy will not be affected by the fraudulent misconduct of the master, in withholding from his owner information of the loss, until after the policy was underwritten. *The French ordinance of the marine had no positive provisions on this subject, and yet the same principles which prevailed in the English law were recognised as sound principles applicable to the government of the contract. In the new code, it is provided, that any concealment or misrepresentation on the part of the insured, which would diminish the opinion of the risk, or change the subject matter of it, annuls the insurance. It is held to be void even when the concealment or misrepresentation would have had no influence on the loss. Nor is it deemed necessary, under the French law, to prove fraud in fact; and the concealment or misrepresentation is equally fatal, whether it proceeds from design, forgetfulness or negligence. The severe dispositions of the code are much

policy is void so far as respects the previous loss; for that the captain was bound, as agent of the owner, to communicate to him the loss, and what was known to the agent was impliedly known to the principal.

■ Emerigon, tome i. 69. The ordinances of Hamburg, and of the marine, and the Code of Commerce, required generally that every condition or covenant stipulated between the parties, should be inserted in the policy. This would seem to include all positive representations, and yet they require only the substantial performance of them, unless a literal fulfilment be made a condition. Ord. de la Marine, 2 Valin, 31. Code de Commerce, art. 332. Benecke, cited by Mr. Duer on Representations, p. 133. The English judges have regretted that all material representations were not inserted in the policies, to avoid dispute and litigation. Lord Tenterden and Sir Vicary Gibbs, 9 B. & Cressw. 693. 4 Taunton, 639.

Code de Commerce, art. 348.

• Pardessus, tome iii. 330. Boulay Paty, tome iii. 510. The latter writer cites several decisions from the Journal de Jurisprudence, Commerciale et Maritime de Marseilles, made within the ten preceding years, by which contracts of insurance were declared void on this very ground of misrepresentation and concealment; and they do great credit to the exemplary justice of the French tribunals. Ibid. 514-527.

commended by the French lawyers, as an improvement upon their ancient jurisprudence, and a great protection to the insurer against impositions of which he was often the victim.a

2. Of warranty.

There is, in every policy, an implied warranty that the ship is seaworthy when the policy attaches. This means, as we have already seen, that the vessel is competent to resist the ordinary attacks of wind and weather, and is competently equipped and manned for the voyage, with a sufficient crew, and with sufficient means to sustain them, and with a captain of general good character and nautical skill. It is also an implied con

• Under this head of representations, the lecture of Mr. Duer, recently published, and to which I have frequently referred, contains an excellent analysis of the cases, and a logical deduction of the principles they sustain, and it increases our earnest desire that he may be encouraged to go on and examine and illustrate the whole body of insurance law, in the same critical and masterly manner.

Law v. Hollingworth, 7 Term Rep. 160. Wilkie v. Geddes, 3 Dow's Rep. 57. Silva v. Low, 1 Johns. Cas. 184. Brown v. Girard, 4 Yeates' Rep. 115. Walden v. Firemen's Ins. Company, 12 Johnson, 128. In the nisi prius case of Clifford v. Hunter, 3 Carr. & Payne, 16, Lord Tenterden ruled, that a ship was not seaworthy for a voyage from India to England, with no other person on board except the master, capable by his skill in navigation, of taking the command of the ship, in the case of the death or sickness of the master, and that the mate must have that nautical skill. This is a new doctrine, and it may be questioned as a general rule, applicable to all voyages. Lord Tenterden admitted it to be a question, not of law, but of fact, for a jury. The warranty would seem to imply no more than that the assured must have a sound and well equipped vessel in reference to the voyage, and have on board a competent person as master, and a competent person as mate, and a competent crew as seamen. In the American coasting and West India trade, Lord Tenterden's rule would be oppressive, and is contradicted by usage, and is not the law in respect to any such trade. Treadwell v. Union Ins. Company, 6 Cowen, 270. In the case of Gillespie v. Forsyth, tried before Mr. Justice Bowen and a special jury, in the K. B., at Quebec, October, 1839, the doctrine of Lord Tenterden was discarded in reference, at least, to voyages between the West Indies and Quebec, and it

dition, that the goods, tackle of the ship, &c., shall be properly stowed, and that there should be a pilot on board of competent skill. This warranty of sea*288 worthiness relates to the commencement of the risk, and the warranty is not broken if she becomes unseaworthy afterwards. But it is the duty of the assured to keep the vessel seaworthy during the voyage, if it be in his power to do so; and if, from the neglect or want of good faith of the owner or his agents, the vessel becomes unseaworthy, by damage or loss in her hull or equipments during the voyage, the owner must repair the damage or supply the loss, at the port of refuge, refreshment or trade. The underwriter will be discharged from liability for any loss, the consequence of such want of faith or diligence. Unseaworthiness arising after the commencement of the voyage, and produced by a peril insured against, does not, of itself, discharge the insurer. It imposes upon the assured the

was shown to be contrary to usage. Law Reporter for January, 1840. But in Copeland, in N. E. Marine Ins. Company, 2 Metcalf's R. 432, it was held, after great discussion, that a vessel to be seaworthy, must not only have a competent master, but a mate, competent to act as master in case of necessity.

a Roccus, note 22. Brooks v. Oriental Ins. Company, 7 Pick. 259. Vide supra, p. 175.

Peters v. Phoenix Ins. Company, 3 Serg. & Rawle, 25. Holdsworth v. Weir, 1 Manning & Ryland, 673. American Ins. Company v. Ogden, 20 Wendell, 287. The want of seaworthiness in a vessel when the voyage commences, is a good defence, though she arrived in safety at the port of destination. Prescott v. U. Insurance Company, 1 Wharton, 399. Seaworthiness at the commencement of the voyage is a condition precedent; and if seaworthiness does not then exist, the policy is void, and the insurers are not responsible for subsequent loss, even if it arises from another cause; for the policy never attached. Starbuck v. N. E. Ins. Company, 19 Pick. R. 199. If a vessel be warranted neutral, it is sufficient that she be so when the risk commences. Eden v. Parkinson, Doug. 733. Tyson v. Gurney, 3 Term, 477. If the warranty or representation be falsified by irresistible force or unavoidable accident, after the risk has attached, the validity of the con. tract remains unimpaired.

duty of using reasonable diligence to repair it, and a negligence in that respect may discharge the insurer from any loss arising from the want of such due diligence. If a vessel be insured in the latter part of a long sea voyage, the standard of seaworthiness is more liberal and more relaxed, and it will be sufficient if the vessel be competent to be safely navigated home.b There are numerous cases in England and in this country on the question of seaworthiness, and they have generally been questions depending upon matters of fact, and lead to inquiries too minute for general elementary instruction. A breach of the implied warranty of seaworthiness, in the course of the voyage, has no retrospective operation, and does not destroy a just claim to damages for losses occurring prior to the breach of this implied condition. The standard of seaworthiness has been gradually raised within the last thirty years, from a more perfect knowledge of ship-building, a more enlarged experience of maritime risks, and an increased skill in navigation.

In many ports certain equipments would now be deemed essential, which, at an earlier period, were not customary on the same voyages. Seaworthiness is to be measured by the standard in the ports of the country

• Paddock v. Franklin Ins. Company, 11 Pick. 227. Hollingworth v. Brodrick, 7 Adolph. & Ellis, 40. American Ins. Company v. Ogden, 20 Wendell, 287. 294. Copeland v. N. E. Marine Ins. Co., 2 Metcalf's Rep. 432.

Hucks v. Thornton, 1 Holt's N. Y. Rep. 30. Paddock v. Franklin Ins. Company, 11 Pick. 227.

• The cases are well collected in Phillips on Insurance, vol. i. 308-329, 2d edit.

< The same principle applies as to misrepresentations exempt from fraud. Duer on Representations, 83. Annen v. Woodman, 3 Taunt. Rep. 299. Sewall, J., in Taylor v. Lowell, 3 Mass. Rep. 347. Paddock v. Franklin Ins. Company, 11 Pick. 227.